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Gonzalez v. Google & Taamneh v. Twitter: Not with a Bang...
Edited highlights of our analysis
The day after the Supreme Court issued opinions in Twitter v. Taamneh and Gonzalez v. Google—the related cases that had the potential to upend the Internet and weaken Section 230 protections—Berin, Corbin, and Ari shared their reactions to the rulings in a Twitter Spaces event. Below are some highlights of the discussion, lightly edited for clarity:
Corbin Barthold, TechFreedom’s Internet Policy Counsel, reminded us that Twitter v. Taamneh came to the court on a conditional petition for certiorari, one that bundled the case with Gonzalez. He then continued:
Normally in cases of statutory interpretation, the Supreme Court takes no interest in stepping in unless the circuits already disagree about the meaning of statute, and we did not have that. We had a case called Force v. Facebook in the Second Circuit that said . . . you can't get around [Section] 230 on the theory that the service networks people together. We had a case below in the Ninth Circuit, which said you can’t get around Section 230 by arguing some kind of recommendation theory. We have a mountain of precedent that generally gives Section 230 a robust interpretation and very little going the other way. So that should have been a red flag to begin with.
Furthermore, Corbin notes how Plaintiffs’ counsel changed arguments midstream, making it “as hard as possible” for the Court to side with them:
Come the opening brief, counsel changed the question presented. That’s never a good idea. Now it became, “In what circumstances are recommendations in general protected by section 230?” In the reply brief, counsel switched again, saying, “Well, you don’t need to make a ruling about recommendations per se in this case.” And then oral argument rolled around and we got, “Hey, thumbnails, have you heard about thumbnails?” . . . which is in no way connected to the original theory.
He later added, “You could do an hour-long lecture on how that oral argument was just like everything you’re not supposed to do.”
In a response to CNN reporter Brian Fung, Corbin also expounded upon the reason why the opinion in Taamneh focused so much on the case Halberstam v. Welch—and not Section 230:
Halberstam was a D.C. Circuit opinion with an all-star panel... that put together a lot of the common law on aiding and abetting in tort . . . The opinion in Taamneh . . . [notes that] JASTA, the Justice Against Sponsors of Terrorism Act, is the statute at issue in the case, [and in that law] Congress said ‘use the Halberstam framework to figure out what aiding and abetting means’ . . . so there they are.
Berin Szóka, President of TechFreedom, explained the significance of Justice Thomas writing the Court’s unanimous opinion in Taamneh:
In Taamneh you have a unanimous opinion written by Justice Thomas, the person who has been most critical of Section 230. On two occasions, he wrote opinions arguing that the Court should have granted cert in cases involving Section 230. He’s had very strong views about Section 230 and the idea that tech companies are common carriers that should have to carry all speech.
It would seem that after he’s had the benefit of a full briefing on these issues, his understanding is more sophisticated. He certainly sounded that way at oral argument, and it’s very interesting that he is the one that ended up writing the opinion for the court in Taamneh.
The result in these cases, he said, “was effectively equivalent to having dismissed them as improvidently granted.”
Looking to the future, he noted that Justice Thomas had described social media platforms as “passive.” That’s an important claim: “If you search for the word ‘passive’ in the opinion, you'll see there are a number of references where [Justice Thomas] talks about this,” writing that these “are passive companies . . . [they] don’t do screening before people post.”
In Taamneh, passivity works well for them, because it means they’re not aiding and abetting, which in common law requires knowledge and participation. But if platforms don’t even claim to know what information they’re providing, then under some popular but incorrect theories of Section 230, one might argue—indeed, Justice Thomas seems likely to argue—that they don’t get protection for their editorial choices either. That’s a matter for a future case, however.
Ari Cohn, TechFreedom’s Free Speech Counsel, said that oral arguments in Gonzalez were an “unmitigated disaster.” Tech policy watchers had feared for the worst from this case, but plaintiffs’ counsel didn’t make a clear argument. “I suppose we should probably have seen it coming,” he said of the result, which was a brief and unanimous ruling for the defendants. “There was no real opportunity for the Court to get anything done,” he said, in light of the way the arguments were presented.
In his view, the fuzzy arguments about Section 230 were why the ruling in Taamneh focused on the meaning of “aiding and abetting,” and not on Section 230, which the Court didn’t manage to reach. The meaning of that term is well-settled in common law, and translating it into the online world in this case wasn’t that difficult; Twitter’s actions clearly didn’t fit the definition. Plaintiffs’ argument would have greatly expanded on the meaning of the term, setting up massive liabilities for all social media platforms, news sites, and other Internet content providers. “The court kind of understandably balked at that potentially hugely broad liability,” he said, “But it did . . . draw a troubling comparison between social media platforms and telephone companies.”
[Conventional wisdom] was that Gonzalez was going to get decided [first], and that could cause wrinkles with how the NetChoice cases are decided because the implications for whether or not there’s liability might influence the First Amendment arguments. And now it’s likely to be the other way around. The First Amendment question has been decided. And how does that factor into whatever the court thinks about a potential ‘better than Gonzalez case’ if such a thing actually exists? It’ll be really interesting to see, but we will just have to wait at least 12 months.
Want to hear more? Check out the recording for our full analysis on the rulings.
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